Loading...
HomeMy WebLinkAbout251 LLCREPLACEMENT LAND SALE CONTRACT This Replacement Land Safe Contract (the "Contract"), entered into by and between 251, LLC (the 'Seller "), and The City of Carmel Redevelopment Commission (the "Purchaser "), this j day of 2010 (the "Execution Date "), WITNESSES: Recitals WHEREAS, Seller and Purchaser have entered into that certain Purchase Agreement dated June 21, 2005 (the "Purchase Agreement "); WHEREAS, pursuant to the Purchase Agreement, Seller has agreed to convey to Purchaser, and Purchaser has agreed to purchase from Seiler, certain real estate owned by Seller and located at 251 god Street SW and 261 2nd Street SW, which real estate is depicted on Exhibit A (collectively, the "Parcel "), together with and including all of Seller's right, title, and interest in and to: (a) all buildings and improvements located on the Parcel (the "Improvements "); and (b) all rights, interests, privileges, and easements in anyway appertaining to the foregoing, or used in connection therewith (the "Rights "); WHEREAS, the Parcel, the Improvements, and the Rights, collectively, are the "Property "; WHEREAS, pursuant to the Purchase Agreement, the purchase price for the Property is $990,000.00 (the "Purchase Price "); WHEREAS, the Purchase Agreement contemplates that, at the closing of the transaction contemplated therein (the "Closing "): (a) Purchaser shall pay to Seller a portion of the Purchase Price, as more particularly determined pursuant to the Purchase Agreement; and (b) Seller and Purchaser shall enter into a land sale contract pursuant to which Purchaser shall pay the remainder of the Purchase Price to Seller; WHEREAS, the Closing occurred on July 22, 2005; WHEREAS, at the Closing, Purchaser paid to Seller a portion of the Purchase Price equal to $116,000.00; WHEREAS, the remaining amount of the Purchase Price (the "Original Purchase Price Remainder ") at the Closing was $874,000.00; WHEREAS, at the Closing, the parties entered into that certain Land Sale Contract (the "Land Sale Contract ") pursuant to which Purchaser was to pay the Original Purchase Price Remainder; WHEREAS, the Land Sale Contract was amended by that certain First Amendment to Land Sale Contract dated August 3, 2006 (collectively with the Land Sale Contract, the "Original Contract "); WHEREAS, as of the Execution Date, the Contract Balance (as defined in the Original Contract) is $ 6 79, x,76 - 3 (the "Current Purchase Price Remainder "); and WHEREAS, the parties desire to enter into this Contract to replace the Original Contract; Agreement NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are acknowledged hereby, Seller and Purchaser agree as follows: 1. Current Purchase Price Remainder. Purchaser shall pay the Current Purchase Price Remainder as follows: (a) interest. Interest shall accrue on the unpaid principal balance of the Current Purchase Price Remainder remaining from time to time (the "Principal Balance "), with such interest accruing: (i) from the Execution Date until the Purchase Price is paid in full; and (ii) at the rate of 8.00%, The Principal Balance and the accrued but unpaid interest (the "Accrued Interest "), collectively, are the "Contract Balance ". (b) Payment. (i) On the first day of the first full calendar month following the Execution Date, and continuing on the first day of each of the next 66 calendar months thereafter, Purchaser shall pay $10,000.00 to Seller. Each monthly payment shall be applied: (A) first, to Accrued Interest; and (B) second, to reduce the Principal Balance, (ii) On the first day of the 67th full calendar month following the Execution Date (the "Final Payment Date "), Purchaser shall pay to Seller a balloon payment in the amount equal to the Contract Balance. (c) Prepayment. Purchaser may make prepayments of any amount of the Contract Balance at any time without penalty or premium. All payments made by Purchaser, including prepayments, shall be applied first to Accrued Interest, and then to reduce the Principal Balance. (d) Seller's Prepayment Option. Notwithstanding anything set forth to the contrary in this Section, so long as Seller is not in default under this Contract, Seller may demand payment of the Contract Balance in full by Purchaser (the "Seller's Prepayment Option") upon written notice to Purchaser (the "Seller's Prepayment Option Notice "). Within 90 days after delivery of Seller's Prepayment Option Notice, Purchaser shall pay the Contract Balance to Seller; provided that, during such 90 -day period, Purchaser shall continue to make the monthly payments described in Subsection 1(b)(i) to Seiler. 2. Taxes and insurance. (a) Taxes. Purchaser assumes and agrees to pay: (i) aft general and special governmental and utility assessments (the "Assessments ") first becoming due after the date of the Original Contract (the "Original Contract Date "); and (ii) real estate taxes assessed for and becoming a lien against the Property (the "Real Estate Taxes "), beginning with the installment of Real Estate Taxes first becoming due in November 2005 (the "November Installment"); accordingly, there shall be no proration of Real Estate Taxes, and Purchaser shall pay all installments becoming due after the Original Contract Date, including the November Installment. Seller shall pay: (i) all Assessments first becoming due prior to the Original Contract Date, and any other assessments of any nature that first became due prior to the Original Contract Date; and (if) all installments of Real Estate Taxes due prior to the November Installment. Purchaser, at its expense and upon written notice to Seller, may contest on its and Seller's behalf any changes of the assessed valuation of the Property. Seller shall cause all statements for Assessments and installments of Real Estate Taxes payable by Purchaser pursuant to this Subsection to be sent directly to Purchaser, and Purchaser, upon written request by Seiler, shall provide to Seller evidence that Purchaser has paid such Real Estate Taxes. (b) Insurance. Purchaser shall maintain fire and extended coverage insurance with a responsible insurer covering all improvements located on the Property in a minimum amount equal to the amount of the Principal Balance (the "Casualty insurance "). The Required Z:1Documents4Shoup, Jenny4City of CarrneRPatce1141NarriRCFosing Documents\Land ConfracllReplacement Land ContracISReplacement Land Contract - v2,wpa -2- 15Fet11O Insurance shall be issued in the name of Seiler and Purchaser, as their respective interests may appear. Purchaser shall maintain standard liability insurance, in customary amounts, which insurance (the "Liability Insurance") shall name Seller as an additional insured. . Purchaser, upon written request by Seller, shall provide to Seller evidence that Purchaser is maintaining the Casualty Insurance and the Liability Insurance (the "Required Insurance "). (c) Payment. If: (1) Purchaser fails to: (A) pay any Assessments or Real Estate Taxes; or (B) maintain the Required Insurance; and (ii) such failure continues for ten days after written notice from Seller; then Seller may pay such Assessments or Real Estate Taxes or maintain the Required Insurance, as the case may be, and add the amount paid to the Principal Balance. 3. Possession and Title. Seller and Purchaser acknowledge that: (a) on the Original Contract Date, Seller gave to Purchaser full and complete possession of the Property; (b) as of the Original Contract Date, Purchaser has the right to any income from the Property; and (c) Purchaser has obtained, from Hamilton Title Security, LLC (the "Title Insurer "), a and contract purchaser's policy of title insurance satisfactory to Purchaser (the "Land Contract Title Policy "). After the Original Contract Date, Seller has not encumbered, and shall not encumber, the Property with a mortgage or any other lien. 4. Damage. All proceeds of the Casualty Insurance received by Purchaser and Seller as payment for any loss of, or damage to, the Property shall be applied as determined by Purchaser either: (a) to restoration and /or repair of the Property; or (b) toward prepayment of the Contract Balance; provided that, if an uncured Event of Default (as defined in Section 9) exists on the date of receipt of such proceeds, then Seller may require such proceeds to be applied toward prepayment of the Contract Balance, with any excess to be paid to Purchaser. 5. Mechanics' Liens. Purchaser shall not suffer or cause the filing of any mechanic's lien against the Property. If any mechanic's lien is filed against the Property, or any part thereof, for work claimed to have been done for, or materials claimed to have been furnished to, Purchaser, then Seller, at its option, may compel the prosecution of an action for the foreclosure of such mechanic's lien by the llenor. if; (a) any such mechanic's lien is filed; and (b) an action is commenced to foreclose the lien; then, upon receipt of written demand from Seller, Purchaser, at its expense, shall cause such mechanic's lien to be released by: (a) filing a written undertaking with a surety approved by the Court; and (b) obtaining a court order releasing the Property from such mechanic's. lien. Nothing in this Contract shall be deemed or construed to constitute consent to, or a request of any party for, or as giving Purchaser the right or authority to contract for, authorize, or permit, the performance of any work or the furnishing of any materials that would permit the attaching of a valid mechanic's lien. 6. Indemnification. Purchaser hereby assumes all risk and responsibility for accidents, injuries, or damages to persons and property arising from its use and control of the Property and the improvements located thereon, Each party shall indemnify and hold harmless the other from and against any and ail claims, judgments, liabilities, losses, costs, and expenses (including, without limitation, reasonable attorneys' fees and court costs) arising from,, or connected with, such party's control or use of the Property (including without limitation, any damage or injury to person or property); provided that these indemnifications shall not include any matter against which Seiler or Purchaser effectively's protected by insurance. If either party, without fault, becomes a party to litigation commenced by or against the other party, then the party by or against whom litigation is commenced shall indemnify and hold harmless the other party. 7. Use. Purchaser may use the Property for any legal purpose. If Purchaser: (a) obtains, from an independent MAI appraiser, an appraisal that values the Parcel and the Improvements separately (the "Appraisal "); and (b) pays down the Principal Balance so that it is no more than 80% of the value of the Parcel, as set forth in the Appraisal; then Purchaser shall have the right to demolish the Improvements. Except to the extent that Purchaser is permitted to demolish the Improvements, Purchaser shall: (a) use the Property Z.1Documenu1Snoup, Jenny'City of CarmegParcel 14lffarrlll1Closing Dacumants%Land ContracOReplacamenl Land Contract Raplacemant 15Fe610 Land Contracl.v2.wpd -3- in a careful manner; (b) keep the Property in good repair; and (c) not commit waste on the Property. In connection with its use of the Property, Purchaser shall comply with all applicable federal, state, or local laws, statutes, or ordinances, or governmental rules, regulations, or orders. Until the Contract Balance is paid in full, Seller, from time to time, at reasonable times, and upon prior written notice to Purchaser, may enter upon and inspect the Property. 8. Purchaser Defaults. Each of the following shall constitute an "Event of Default" for purposes of this Contract: (a) Failure by Purchaser to make any payment within 10 days after the date on which such payment is due; (b) Failure by Purchaser to observe or perform any term or condition of this Contract to be observed or performed by Purchaser with respect to insurance, and the continuance of such failure for 15 days after delivery of written notice by Seller; (c) Failure by Purchaser to perform or observe any other term or condition of this Contract, and the continuance of such failure for 30 days after delivery of written notice by Seller; provided that, if such failure is of a nature that it reasonably cannot be cured within 30 days, then no Event of Default shall be deemed to have occurred so long as Purchaser: (1) commences to cure such failure within 30 days; and (ii) diligently pursues such cure to completion; (d) The making of any levy on, or any seizure or attachment of, the Property; (e) Purchaser: (i) institutes or consents to any proceedings: (A) in insolvency; (B) for the adjustment, liquidation, extension, or composition or arrangement of debts; or (C) for any other relief under any insolvency law or laws relating to the relief or reorganization of debtors; (ii) files an answer admitting bankruptcy or insolvency, or in any manner is adjudged insolvent; (iii) makes an assignment for the benefit of creditors; or (iv) admits in writing its inability to pay debts as they become due; or (d) Any part of the Property, or all or a substantial part of the property or assets of Purchaser, is placed in the hands of any appointed receiver, trustee or other appointed officers or representatives of any court, and the appointment of such receiver, trustee, or other officer or representative is not vacated or set aside within 90 days of the appointment, or Purchaser consents, agrees or acquiesces to the appointment of any such receiver or trustee. 9. Seller Remedies. If an Event of Default occurs and is continuing, then: (a) at the option of Seiler: (1) the entire Contract Balance shall become immediately due and payable by delivery of written notice to Purchaser; and (ii) Seiler shall have the right to exercise any and all remedies available at law or in equity to: (A) collect the Contract Balance; (B) foreclose this Contract; and (C) protect Seller's interest under this Contract and in and to the Property; or (b) Seller may exercise any and all remedies available at law or in equity to enforce the observation or performance by Purchaser of the terms and conditions of this Contract. All of the remedies available to Seller shall be cumulative and not exclusive, and the failure by Seller to exercise any remedy at any time shall not operate as a waiver of the right of Seller to exercise any remedy for the same or any subsequent Event of Default at any time thereafter. If an Event of Default occurs under Subsection 8(a), then, in addition to the foregoing remedies, Purchaser shalt pay to Seller an amount equal to 10% of the late payment, which amount shall riot be applied to the Principal Balance. 10. Transfer of Title. On the Final Payment Date, and upon payment by Purchaser of the Contract Balance, Seller shall convey to Purchaser fee simple title to the Property by general warranty deed, subject ZnDocumenls1Shoup, Jenny4City of CafineflPar 14YHarrpllClosing Documer tslLand ConiractlReplacement Land Contract \Realacamant 15Feb10 Land Contractv2.wpd -4- only to: (a) easements and restrictions of record as of the Original Contract Date, as disclosed in the Land Contract Title Policy, except for those caused by, through, or under Purchaser; (b) the rights of persons in possession of the Property claiming by, through, or under Purchaser; (c) the lien of all Real Estate Taxes payable by Purchaser hereunder; and (d) any other encumbrances which, by the terms and conditions of this Contract, are to be paid by Purchaser. In addition to the foregoing, Seller shall deliver the following to Purchaser: (a) a vendor's affidavit, in form and substance reasonably satisfactory to Purchaser and the Title insurer; (b) an affidavit that Seller is not a "foreign .person ", in form and substance similar to that delivered to Purchaser at the Closing; and (c) an affidavit that the Parcel is not "property" under the Indiana Responsible Property Transfer Law, as amended, in form and substance similar to that delivered to Purchaser at the Closing. 11. Notices. All notices permitted or required to be given hereunder shall be in writing, and shall be deemed to be delivered when: (a) delivered personally; (b) sent by facsimile, with electronic confirmation of receipt; or (c) sent by national overnight courier; in all events to the following addresses: to Purchaser at City of Carmel, Indiana, One Civic Square, Carmel, Indiana 46032, Facsimile: 317 -844 -3498, Attn: Les Olds, with a copy to: Karl P. Haas, Esq., W ailack Somers & Haas, One Indiana Square, Suite 1500, Indianapolis, Indiana 46204, Facsimile: 317 - 231 -9900; or (b) to Seller at 3057 Sugar Maple Court, Carmel, Indiana 46033, with a copy to Curtis J. Butcher, Esq„ Law Offices of Curtis J. Butcher, 8 West Main Street, Carmel, Indiana 46032, Facsimile: 317 -846 -2597. Either party may change its address for notice by written notice delivered to the other party as provided above. 12. Assignment. Purchaser shall not sell, assign, pledge, mortgage, encumber, or transfer its rights and interests in and to the Property and under this Contract without the written consent of Seller; provided that Purchaser, without the written consent of Seller, shall have the right, without the consent of Seller, to: (a) assign this Contract to any agency or instrumentality of the City of Carmel, Indiana; or (b) sell, assign, pledge, mortgage, encumber, lease, subcontract, or transfer its rights and interests in and to the Property and under this Contract to a party that has committed to Purchaser that it will redevelop the Property; provided that, in either case, Purchaser shall remain obligated hereunder until the Contract Balance is paid in full. This Contract otherwise shall be binding upon, and shall inure to the benefit of, Seiler and Purchaser and their respective heirs, personal representatives, successors, and assigns. 13. Authority. The undersigned persons executing this Contract on behalf of Seller and Purchaser represent and certify that: (a) they are fully empowered and duly authorized by all necessary action of Seller and Purchaser, respectively, to execute and deliver this Contract; (b) they have full capacity, power, and authority to enter into and carry out this Contract; (c) the execution, delivery, and performance of this Contract have been duly authorized by Seller and Purchaser, respectively; and (d) this Contract is the legal, valid and binding obligation of Seiler and Purchaser, respectively. 14. Miscellaneous. The terms and conditions of this Contract shall be governed by and construed in accordance with the laws of the State of Indiana. If Seller fails to observe or perform any term or condition of this Contract to be observed or performed by Seiler, and such failure continues for 30 days after receipt of written notice from Purchaser, then: (i) Seiler shall be deemed to be in default; and (ii) Purchaser may exercise any and all remedies available at law or in equity (including, without limitation, the remedy of specific performance); provided that, if such failure is of a nature that it reasonably cannot be cured within 30 days, then no default shall be deemed to have occurred so long as Seller: (I) commences to cure such failure within 30 days; and (ii) diligently pursues such cure to completion. This Contract replaces and supersedes the Purchase Agreement and the Original Contract in their entirety, and is the final expression of the complete ZADocumants \Shoup, JennylCdy or CarmeriParcel 141Harritl \Closing DoeumentaULand Contradt\Replacemant Land ContraellReplacement Land Cantract.v2.wpd -5- 15Fab10 and exclusive agreement between Seller and Purchaser with respect to the Property. No agreement by and between Seller and Purchaser to modify or amend this Contract shall be binding and enforceable, unless all terms and conditions of the modification or amendment are set forth in writing and signed by Seller and Purchaser. At the request of either party; (a) both parties shall execute a memorandum of this Contract, in form and substance reasonably satisfactory to both parties; and (b) CRC, at its expense, shall record the same. IN WITNESS WHEREOF, Seller and Purchaser have executed this Contract as of the day and year first written above. Z:4Documents \Shoup. Jenny\City or CarmenParcei 14%HarriEl \Cosing Documentad.and ContracilRaplacement Land ConlraatSRepiacament Land Cantraciv2,wpd -6- THE CITY OF CARMEL RE' V. t EN C f By: SSION Ronald Carter, President 15Feb10